Morotsi takes BERA board to court

Publishing Date : 08 October, 2018

Author : UTLWANANG GASENNELWE

The suspended Chief Operating Officer (COO) of Botswana Energy Regulatory Authority (BERA) Duncan Morotsi has taken the Board of the organisation to court. On the other hand the Board has moved swiftly to seek legal advice on the prospect of success in the review of proceedings and general guidance on other issues arising.

The COO, Morotsi, was suspended in June earlier this year for dubious appointment of a consultant from Tanzania, Edwin Kidiffu who would produce regulations for the Authority. Kidiffu is a legal practitioner employed by Energy and Water Regulatory Authority in Tanzania.

The COO’s grounds that the suspension be set aside are that the commission of inquiry violated the rule against bias in taking the decision to suspend him. The argument advanced by the COO is that the members of the Commission of inquiry assumed the roles of complainant, judge and jury in respect of his suspension. He further states that there was no meeting called to set up the commission of inquiry; and that he was being unfairly targeted because the decision to appoint Mr Kidiffu was authorized by the CEO.

The matter has led to a court case and a notice of opposition has been filed on behalf of the Authority and the case has been set for a roll call on 8 October 2018 at which directions for the further conduct of the matter will be issued.
In advising the BERA Board the attorneys, Mboki Chilisa and Shathani Somolekae of Collins Chilisa Consultants wrote a letter marked ‘private and confidential’ to the BERA legal and Licensing Committee Chairperson, Kelebogile Moremi indicating that most of the points raised by the COO are devoid of merit .

Chilisa and Somolokae state in the confidential letter, a copy of which the Weekend Post is in possession of, that: “the COO [Morotsi] submits that he has been unfairly singled out for implementing a decision that was authorized by the CEO as principal officer of the Authority.”

According to the esteemed attorneys, the rule of parity in employment requires that where two employees in an organisation have committed an offence, all things being equal, they ought to be subjected to the same disciplinary consequences. They continued: “Failing to do so, renders the disciplinary action taken against the employee [Morotsi] who received the stiffer disciplinary sanction unfair.” But they indicate that there has not been any disciplinary action hence this argument by Morotsi will fall off.

The parity argument, they further say that is one that ought to be raised at the disciplinary inquiry if there is going to be one while adding that this is because it is concerned with the fairness of the imposition of a disciplinary sanction. “A suspension to aid investigation is not a disciplinary action, and it is therefore most difficult to sustain argument that seeks to impeach the validity of a suspension on the basis that other senior employees have not been suspended,” the lawyers wrote in the highly classified letter to BERA legal and Licensing Committee Chairperson.

They continued to state that it is not inconceivable that following completion of the investigation the Commission of Inquiry may conclude that the COO did not commit any disciplinary offence or that disciplinary action be taken against other employees. Mboki and Somolekae advise in the confidential letter that the argument about a violation of the parity principle is premature as no disciplinary action has been taken against the COO. Should, they further posit, the disciplinary actions be instituted against the COO arising from the procurement of the services of Kidiffu— it is an argument that the Authority will have to contend with.

The highly competitive attorneys stressed that: “there must be some justification if disciplinary action is only going to be taken against the COO in respect of a procurement exercise that was authorised by the CEO.” It is in the lawyers’ contention that the Commission of Inquiry should finalise its investigations and that if it forms the view that there is a prima facie case, it should recommend to the board the charges that should be preferred against the COO.

They also pointed out that the decision to appoint a commission of inquiry was unanimous hence quashing the COO’s argument that there was no meeting that resolved to set it up. The board must then deliberate on the recommendations, the secret letter from the two Counsels states, adding that, “the recommendations need not be limited to the COO and may extend to other senior employees should it appear that they also may have committee disciplinary forces.”

WHY COO MOROTSI WAS SUSPENDED

The classified letter from Mboki and Somolekae further states that on 5 June 2018, the board resolved to conduct an inquiry on the engagement of Kidiffu to provide consultancy services to BERA. The decision to conduct an inquiry was unanimous.
It is understood that the terms of reference of the Committee of Inquiry were to conduct a full inquiry and to advise the board on whether an act of misconduct has been committed, and if so, recommend disciplinary or corrective measures to be taken.
The Committee of Inquiry is constituted by three board members; Jonathan Moseki, Kenneth Kerekang and Matsapa Motswetla, of which Moseki was appointed Chairperson.

The letter posits: “Following constitution of Commission of Inquiry and after commencing its work, the Commission resolved on 11 June 2018 to suspend the COO pending a full investigation. They observed that the suspension was necessary in order to preserve the integrity of investigations. A suspension letter dated 11 June 2018 was issued to the COO. The letter advised that the suspension will be on full pay and that COO should not enter the Authority’s premises.”

The two lawyers said the Committee of Inquiry sought to ratify the suspension through a resolution adopted through the process of round robin, adding that a majority of the board members supported the decision to suspend the COO and that the resolution was ratified through a majority vote.

The preliminary Investigation report by the Commission of Inquiry however notes that “the only time the engagement of Kidiffu was discussed was in respect of logistics to host him in Botswana, at a management meeting at which the CEO, COO, Chief Finance Officer (CFO) and Human Resource Director (HRD) were present.”

THE CONTROVERSIAL PROCUREMENT OF KIDDIFU

The two well-regarded lawyers narrated that according to the CEO, at a management meeting held on 19 March 2018, at which the CEO; the COO; the Human Resource Director; the Chief Financial Officer were present, the COO tabled a request for the engagement of Kidiffu, to prepare draft regulations for promulgation in terms of the Act.

“Thereafter Kiddifu concluded a written agreement with BERA in respect of provision of the services. The agreement is date signed 18 April 2018 by Kidiffu, but there is no indication as to the date when the COO, who represented BERA, signed it. For purposes of completeness, we note that discussions on the engagement of Kidiffu had started in February 2018 and these were conducted through email exchanges between the COO and Kidiffu. The first invoice for work done is dated 9 March 2018.”

In terms of the agreement, it further says that Kidiffu was to be paid the amount of USD15 000 (about P 160 000.) payable in three installments and that the Authority was required to meet all Kidiffu’s travel and accommodation costs during such times as he may be needed in Botswana, and the assignment was required to be completed by 31 July 2018.